How case of Mohamud v Morrison Supermarkets changed face of vicarious liability for employers

Jennifer Young

16 March 2016


Vicarious liability is a legal term used in cases where a claimant wishes to make a claim against someone who has a responsibility for the acts of another. As Lord Toulson in his Judgement in the above case put it:

‘Vicarious liability in tort requires, first, a relationship between the defendant and the wrongdoer, and secondly, a connection between that relationship and the wrongdoer’s act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct.’

In situations where claims are made against an employer for the wrongful acts of an employee the first element of the above statement is almost always fulfilled and it is therefore the second element that has made vicarious liability claims against an employer more difficult to succeed with.

However, the recent decision of Lords Neuberger, Dyson, Reid, Toulson and Lady Hale, may have altered the position significantly for employers.

The facts of the case were that in 2008, Mr Mohamud was a customer at a petrol station owned by WM Morrison Supermarkets Plc. [Morrison’s] where Mr Khan was employed. Mr Mohamud who was of Somali origin was on his way to a community event in London and he went into the kiosk in the petrol station to enquire whether it would be possible to print some documents from a USB stick. The court was told that Mr Khan, who was behind the counter in the kiosk swore at Mr Mohamud telling him that they [Morrisons] did not do that and when Mr Mohamud protested at being spoken to in such a manner, Mr Khan using foul, racist and threatening language ordered him to go back to his car. Mr Mohamud did so but was followed by Mr Khan to his car and before he could drive away Mr Khan opened the passenger door and told Mr Mohamud never to come back. Mr Mohamud told Mr Khan to shut the passenger door but instead Mr Khan punched Mr Mohamud in the head. Mr Mohamud then got out of the car to close the passenger door but was subjected to a further serious physical assault by Mr Khan despite Mr Khan being told by his supervisor to stop. The reasons for Mr Khan’s attack on Mr Mohamud are unknown but the Court was satisfied that Mr Mohamud had done nothing which was considered to be aggressive or abusive to provoke such an attack upon him.

The trial Judge, although feeling much sympathy for Mr Mohamud, did not consider that Morrison’s were vicariously liable for Mr Khan’s actions. He applied the ‘close connection’ test and this was upheld by the Court of Appeal who said that even though Mr Khan’s employment involved interaction with customers, this was not enough to make his employers liable for his use of violence towards Mr Mohamud. 

The ‘close connection test’ which was laid down in the case of Lister v Hesley Hall Ltd [2001] UKHL 22; [2001] 1 AC 215 and has been largely followed since, says that in situations where an employee carries out a negligent act, the act must be deemed to have been closely connected to the work that the employee was employed to do. In other words, an employer whose employee during the course of his employment fails to properly secure a load of pallets in a lorry for delivery and these pallets fall and injure a customer for example, is likely to be found vicariously liable for the employee’s negligent actions in failing to properly secure the load. This is because the employee’s failure to properly secure the pallets was ‘closely connected’ to the work that he was employed to do, i.e. safely load and secure pallets for delivery. 

In the current case however, the trial Judge and the Court of appeal Judges all felt that the ‘close connection’ test was not satisfied because despite the fact that the employment of Mr Khan involved interaction with customers, this was not enough to make Morrison’s liable for the violent interaction with Mr Mohamud. 

Mr Mohamud appealed the court of Appeals’ decision to the Supreme Court on the grounds thatthe question in these types of cases should not be whether there is a close connection with the wrongful act and the employment, but rather whether a reasonable person would consider that the employee was acting in the capacity of a representative of his employer at the time of committing the wrongful act regardless of whether he was authorised by his employer to do so. The argument made by Mr Mohamud’s legal team was that it should not matter what Mr Khan’s duties to his employer were (or what he was employed to do) but rather that the employer had created the setting for the attack by placing Mr Khan in a position where he came into contact with Mr Mohamud.

In a unanimous decision, the Supreme Court held in favour of Mr Mohamud finding that having considered two matters - namely, what functions or activities had been entrusted by Morrison’s to Mr Khan; and whether there was sufficient connection between the position Mr Khan was employed to do and his wrongful actions towards Mr Mohamud to make it right that Morrison's should be held to be responsible  - that as it was Mr Khan’s job to attend to customers and to respond to their enquiries, his conduct in doing so was ‘within the field of his activities’.

The Court held that Mr Khan, having ordered Mr Mohamud not to come back to his employer’s premises, was not giving a personal order but rather an order in relation to his employer’s business and whilst this was clearly an abuse of Mr Khan’s position, the Court found that it was nevertheless an order in connection with the business where Mr Khan was employed. In light of this, having entrusted Mr Khan to this position is was therefore right that Morrison’s should be held responsible for his wrongful actions.

This decision clearly affords claimants a greater chance of recourse against an employer following a wrongful act of an employee as the Lord Justices have widened the scope of the ‘close connection’ test by deciding the case  based on whether the action was ‘within the field of the employee’s activity’ rather than having been ‘closely connected to it’. It is therefore the case that the usual defence put forward by employers in these types of cases will no longer hold as much weight if it can be shown that the wrongful act was committed during working hours whilst the employee was acting as a representative of the employer. 

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